>>> You are live in the CNBC CNN
"Newsroom," I'm Jim Acosta in
Washington.
It was a decision prompted by
quote extraordinary
circumstances that's how
attorney general Merrick Garland
is describing appointing jack
Smith to oversee two criminal
probes over Donald Trump, both
the sensitive documents found at
mar-a-lago as well as the
accidents surrounding the
January 6th attack.
Garland said the appointment was
necessary now that Donald Trump
is a 2024 candidate and Biden
says he plans to run also.
The former president quickly
seized on the opportunity to
publically bash the move.
>> This abuse of power is the
latest in a long series of witch
hunts.
They want to do bad things to
the greatest movement in our
country and in particular bad
things to me.
>> Joining me now is John Dean,
and Andrew Mccabe, also the
author of the book "The threat,
how the FBI protects America in
the age of terror and trump".
Andrew, to you first.
What's your reaction to what
trump is saying about the
justice department?
I guess this is to be expected
and it's why Smith better have
some thick skin.
>> Yeah.
Buckle in, Jim, and buckle in,
Mr. Smith, because they can
expect a steady diet of this for
the extent of his tenure as
special counsel.
We'd like to believe that
appointing a special counsel how
insulates the investigation from
accusations of partisanship,
that is not the case we know
that from watching the
experience that Robert Mueller
had.
However that doesn't mean it's
the wrong decision to
appointment one, there are no
policies or laws that demand the
appointment of a special counsel
here it's up to the attorney
general.
He's obviously looked at the
situation and assessed that with
Donald Trump being candidate
make it the prudent thing to do,
pint a special counsel, I agree
with the decision.
But I hope that Mr. Smith is
bringing thick skin to the job.
>> Do you think Merrick Garland
needed to do this, John?
>> They're certainly within the
regulations what he has done.
And the extraordinary
circumstances, I don't think we
have the full understanding of
what he sees in his vision.
For example, we're all aware
he's looking at trump.
Is he also looking at members of
congress who may have been
integral in the January 6th
episode?
So that's one of the things I
thought about when I read his
order appointing jack Smith.
I think it could be a much
broader investigation than
people perceive.
It's just not somebody who's
been placed on the president to
chase him -- or the former
president but rather look at the
entire situation, interference
with the certification is very
broad.
More focused of course is the
second investigation or the
other investigation into the
document mistreatment by the
former president.
>> Andrew, speaking of that,
trump's former attorney general,
bill Barr spoke about the
investigation into the handling
of those documents.
Let's listen to what he had to
say.
>> Is there ever a circumstance
you think it's appropriate to
indict a former president?
>> Oh, yes.
You know, if a former president
commits a crime, you know,
especially a serious crime, they
should be indicted for it.
If the department of justice can
show these were indeed very
sensitive documents, which I
think they probably were, and
also show that the president
consciously was involved in
misleading the department,
deceiving the government, and
playing games after he had
received the subpoena for the
documents, those are serious
charges.
>> That's a serious enough
crime?
>> I said, I personally think
they probably have the basis for
legitimately indicted the -- I
don't know I'm speculating.
>> Speculating.
>> But given what's gone on, I
think they probably have the
evidence that would check the
box.
They have the case.
>> And, Andrew, in the previous
hour we asked the former
attorney general Alberto
Gonzalez the same thing and he
said there might be a case there
with the document case when it
comes to whether to indict the
former president.
What do you make of these
comments?
>> Both former attorneys general
are doing the math all of us
have done over the last several
months, certainly since the
search warrant in August.
Simply from the information
widely known to everyone what's
been reported in the press and
what the government has revealed
in the court filings in the
fight over this information
after the search warrant.
We know they have a lot of very
serious information that
indicates a strong and sound
basis to bring charges.
Now that doesn't mean that
charges will be brought.
They could also be aware of all
sorts of other things that are
potential defenses or problems
with that evidence we're not
aware of.
Clearly doj still has a decision
to make.
But based on what we know from
what is already in the public
record, this is a case that is
far beyond, I would say far
beyond the halfway point.
Let's think about that as
compared to the job that special
counsel Mueller walked into,
when my colleagues and I pushed
then acting attorney general,
rod Rosenstein to appoint the
special counsel.
At that moment we were at the
beginning of a broad scope
investigation into potential
foreign influence.
So Mueller was brought in and
said determined if this happen,
if so, should charges be
brought.
With respect to the mar-a-lago
case we know what happened, and
based on what we're aware of,
there could well be an
indictment in this case.
>> The key difference between
these investigations and the
Mueller probe is the former
president is now out of
government with no power over
the special counsel, he can't
threaten to fire him.
But what about what Andrew was
saying a few moments ago, that
this does not look very good for
the former president, that it
appears that this investigation
has traveled a pretty long
distance?
>> Certainly the documents case
is not a difficult case.
There are lots of precedents to
prosecute in these
circumstances.
A group at the Brookings
institute, a group of former
federal prosecutors and some
defense attorneys, went through
all the existing record of
prosecutions of these types of
cases, and found plenty of
precedent where trump is
actually one of the more
egregious based on the facts we
know, and no one knows of any
mitigaing facts and there has
been litigation on this in a
Florida court where the
president has tried to dance
around a little bit on the fact
that he got a subpoena served on
him, that uncovered a lot of his
misbehavior.
And that is, indeed, the record
that jack Smith will pick up and
pursue.
And I don't think it'll be very
long until he makes a decision
one way or the other, and I
don't suspect it's going to be a
decision Mr. Trump is happy